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January 4, 2008

Judge puts Oregon domestic partner law on hold

Portland, Ore.--A federal judge has suspended the state’s domestic partner law until he can hear arguments in a case that is trying to force a referendum on it.

The measure was to take effect January 2 and celebrations were being prepared until U.S. District Judge Michael Mosman issued a temporary injunction on December 28. He set up a February 1 hearing on a lawsuit alleging that the method used to certify petitions disenfranchises voters.

The Alliance Defense Fund, an Arizona anti-gay legal organization, says that by using a sampling system to verify signatures, the state does not allow voters to defend their signatures on the petitions for a referendum.

In October, the secretary of state’s office ruled that the petitions fell 116 signatures shy of the 55,179 needed.

The ADF argues that signing a petition is equivalent to voting, and by not verifying every signature and allowing those whose signatures were invalidated to defend them, the secretary of state’s office is denying citizens their constitutional rights.

Critics of the law also claimed that the legislature violated the will of Oregon’s voters, who in 2004 passed a constitutional amendment barring same-sex marriage.

“Since Oregon officials do not verify every individual signature, but instead use a sampling method to determine the percentage of invalid signatures and then do the math to determine whether there are enough valid signatures, it is impractical, perhaps impossible, to give individual signatories from among the more than 55,000 whose names appear on the petitions, a chance to contest the invalidation of their signatures,” said Arthur S. Leonard, a professor at the New York University School of Law. “The ADF appears to be arguing that this system violates the constitutional right to vote.”

Judge Mosman, who has been on the bench since 2003, was a law clerk for Supreme Court Justice Lewis F. Powell when he cast the deciding vote in the 1986 Bowers v. Hardwick case that upheld Georgia’s sodomy law.

Powell was initially in favor of striking the law, but memos from Mosman and last-minute lobbying by Chief Justice Warren Burger convinced him to uphold it. Four years later, after he retired, Powell said he thought he had made a mistake in that decision. The rest of the high court agreed in 2003, reversing itself and striking down sodomy laws in Lawrence v. Texas.

Mosman’s Oregon injunction turned what were planned to be celebrations of the law’s enactment into candlelight vigils across the state.

The delay in the domestic partnership law was matched with the joy over a law barring discrimination in housing, employment and public accommodations that protects on the basis of sexual orientation and gender identity. That law went into effect this week.

Marylin Shannon, a right-wing former state legislator, said when the petitions were rejected that she and her supporters may start an initiative to have both the domestic partner and equal rights legislation repealed, and to retroactively cancel any domestic partnerships that had been granted. However, that effort would take even more signatures than the referendum attempt.

If Mosman rules in favor of the petitioners, assuming attempts to overturn his decision on appeal fail, the matter would go to voters in November. If he declines to grant a permanent injunction against the legislation or rules against the petitioners, the law would immediately go into effect.

 

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